More views of Abbott’s Section 3 brief

Attorney General Abbott’s second claim is in many ways even more fundamental because it gets to the heart of what the Voting Rights Act is supposed to do.

That claim asserts that:

[R]edistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats … [They] were motivated by partisan rather than racial considerations.

To be fair, the claim is not a new one. It’s one the state has made from the very outset of the redistricting litigation.

And given that the Supreme Court has yet to recognize the existence of a legally cognizable constitutional claim for partisan gerrymandering, it’s probably about as good as place for the General Abbott to make his stand as any.

Of course, as one commentator has pointed out, the partisanship/ethnicity question is not always a clear “either/or” one:

So, here’s the question the federal courts must decide: When the white party uses its legislative authority to undermine the brown and black party, is that a racial act or merely a political one?

But as good as that question is, there’s something even more basic at stake.

When people like General Abbott say that they would be fine with non-Anglo people if they would just vote Republican, they are, in essence, dictating the terms for African-American and Hispanic voters to have a seat at the table.

Mr Abbott seems to think that the VRA allows him to abrogate minority voting rights as long as he does so for partisan rather than overtly, provably racial reasons. As a matter of history, I might point out that voting discrimination did not happen “in the south in 1965″. It happened in the election of 1964. And 1962. And 1960. And 1958. And in every single election since the founding of the United States except for those few years during Reconstruction when federal troops made sure that some southerners did not have their constitutional right to vote violently kept from them because of an excess of melanin.

That said, Mr Abbott’s interpretation of the Supreme Court’s Shelby County ruling is not quite right. They, like every previous Supreme Court that has upheld the VRA, noted that Section 5 involves an unusually broad exercise of federal power. But “constitutionally suspect” is not the same thing as “unconstitutional”, and laws are only invalid when the court finds the latter. In Shelby County they had the opportunity to reach just such a finding, but declined. Also, I wonder whether Mr Abbott has read Section 5: Mr Holder does not have to prove discriminatory intent, only discriminatory effect. Mr Abbott tries mightily to show that white Democrats such as Wendy Davis and Lloyd Doggett (whose district, Mr Abbott explains, “was completely dismantled in an effort to drive him from office”—italics 100% his) were affected just as badly as black and Hispanic Democrats. But of course the harm in redistricting is done not to politicians (or not only to politicians); it is done to voters, and the VRA is principally concerned not with keeping incumbents in safe seats but in making sure that everyone can vote and that everyone’s vote is equal.

Put aside for the moment what Abbott considers “incidental effects.” Texas minorities have contributed about 90 percent of the state’s growth, but the maps do not reflect that.

What’s most galling here is how unabashedly unashamed is the state’s top lawyer in detailing the partisan aspect of a process that should not be as substantively so. It is written matter-of-factly, as if the public must just numbly accept it.

“Perfectly constitutional” can cover a variety of sins, but here the meaning is clear; legislators keep themselves in power because they can. And if values such as fairness, compactness, competitiveness and communities of interest (when this isn’t code for “safe districts”) get included, that’s purely coincidental.

Challenges to the state’s maps are moot and meritless, Texas says in a court document, because there was no damage done. Those 2011 maps no longer exist. Look! We have new 2013 maps!

And Texas misses the point. The damage is that the state violated the Constitution in enacting those maps in 2011 in the first place. And, as 2011 isn’t ancient history, this amounts to a current, intentionally discriminatory act that demands relief because it proves the case that Texas is unreformed and unrepentant of its discriminating ways.

[…]

Again, in my book, the 2013 maps don’t shout out trustworthiness, but these groups are not asking for new maps. First they are looking to amend their original complaints to adjust to the Supreme Court’s ruling. Then they are seeking preclearance, which will have the effect of the state trying to prove that its 2013 maps — and voter ID, by the way — are not discriminatory.

And Texas is reluctant to go there and not just because of states rights. There’s a record.

Another federal court in Washington, D.C., said, in the case of the state’s 2011 congressional maps, that the court had been “provided more evidence of discriminatory intent than (it had) space, or need, to address.” It found the same tomfoolery in the state House maps.

On voter ID, another panel of judges found the law would adversely affect minorities.

Translated: Texas, you knew precisely whom you were shafting.

See here for the background. None of this means that the Supreme Court, at least as it is currently constituted, won’t accept Abbott’s arguments. But we should be clear as to what it is they’d be signing on to if they do.